United States District Court, E.D. California
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
WILLIAM B.SHUBB UNITED STATES DISTRICT JUDGE.
Plaintiff
James Arkens brought this wrongful termination and
discrimination action against defendants the County of Sutter
(the “County”), County Board of Supervisors Ron
Sullenger, Jim Whiteaker, and Dan Flores, and County Auditor
Nate Black. Defendants now move to dismiss plaintiff’s
Complaint for failure to state a claim upon which relief can
be granted pursuant to Federal Rule of Civil Procedure
12(b)(6).
I.
Factual and Procedural Background
The
County hired plaintiff as its Chief Administrative Officer
(“CAO”) on January 1, 2013 for a term of three
years. (Compl. ¶ 17, Ex. A (Docket No. 1).) Between
March 2013 and July 2014, plaintiff and Supervisor Sullenger
had a strained working relationship after Sullenger allegedly
requested certain health and retirement benefits that
plaintiff explained could not be provided. (Id.
¶¶ 23-26.) In April 2015, County Auditor Black
informed the auditors, County Counsel’s Office, the
District Attorney, and Sullenger that plaintiff had allegedly
embezzled $2.5 million from a County energy project.
(Id. ¶¶ 32-34.) The following month, the
Board of Supervisors (the “Board”) allegedly took
plaintiff’s performance evaluation off the agenda
because of the embezzlement accusations. (Id. ¶
27.) Plaintiff and Supervisor Whiteaker’s working
relationship allegedly deteriorated shortly thereafter.
(Id. at ¶ 29.) In July or August of 2015,
plaintiff allegedly informed Supervisor Flores that a
contemplated land purchase presented a conflict of interest
for Flores and other county officials. (Id. ¶
37.)
In
September 2015, plaintiff went on medical leave because he
was experiencing frequent panic attacks and “felt very
awkward because of the daily treatment by his superiors and
County Officials.” (Id. ¶ 46.) On October
15, 2015, without providing plaintiff an opportunity to rebut
the embezzlement accusations, the Board informed plaintiff
that it did not intend to renew his contract and allegedly
told him that, “if he did not immediately accept the
County’s Offer to resign, he would be placed on
Administrative leave.” (Id. ¶ 20.)
Plaintiff was placed on administrative leave and was
allegedly constructively discharged. (Id.
¶¶ 22, 46.)
In
addition to the embezzlement accusations, the Board allegedly
placed plaintiff on administrative leave and decided not to
renew his contract because of plaintiff’s age.
(Id. ¶¶ 61-62.) Prior to placing plaintiff
on administrative leave, several Supervisors allegedly
“made comments” about plaintiff’s age and
“commented out loud” about when he would retire.
(Id. ¶ 42.)
Plaintiff
initiated this action in May 2016 and asserts claims for (1)
wrongful discharge in violation of public policy against all
defendants; (2) defamation against the County and Black; (3)
violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621-634, against
the County, Sullenger, Whiteaker, and Flores; (4)
“federal and state retaliation” against all
defendants; (5) intentional infliction of emotional distress
against all defendants; and (6) negligent infliction of
emotional distress against all defendants. Defendants now
move to dismiss the Complaint in its entirety pursuant to
Rule 12(b)(6).
II.
Analysis
On a
motion to dismiss under Rule 12(b)(6), the court must accept
the allegations in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds by Davis v. Scherer, 468 U.S. 183 (1984);
Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a
motion to dismiss, a plaintiff must plead “only enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the
‘grounds’ of his entitle[ment] to relief’
requires more than labels and conclusions . . . .”
Twombly, 550 U.S. at 555 (alteration in original)
(citations omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice, ” and “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678.
“The
plausibility standard is not akin to a ‘probability
requirement, ’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (internal
quotation marks and citation omitted). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id.
1.
Official versus Individual Capacity
Defendants
contend that the claims against the individual defendants
should be dismissed because plaintiff sued those defendants
in their official capacities. (See Compl. ¶¶
12-15.) Although unnecessary disputes and confusion
frequently arise based on the capacity in which a defendant
is sued in the complaint, determining the appropriate
capacity from the allegations in the complaint is neither
impossible nor difficult. Simply stated, if a plaintiff seeks
to have a public officer pay damages, the suit is generally
against the officer in his individual capacity; and if the
plaintiff seeks to have the public officer perform an
official act, the suit is generally against the officer in
his official capacity. See Price v. Akaka, 928 F.2d
824, 828 (9th Cir. 1990); Biggs v. Meadows, 66 F.3d
56, 61 (4th Cir. 1995). Because of this distinction, a
majority of the circuits have rejected the argument that a
plaintiff is required to allege the capacity in which a
defendant is sued. Biggs, 66 F.3d at 59. Instead,
the majority approach “look[s] to the substance of the
plaintiff’s claim, the relief sought, and the course of
proceedings to determine the nature of a [] suit . . .
.” Id. (citing cases from the Second, Fifth,
Seventh, Ninth, Tenth, and Eleventh circuits).
The
only relief plaintiff specifically requests in his prayer for
relief is damages, [1] and plaintiff can seek damages against the
officers only in their individual capacities. The court will
therefore treat plaintiff’s claims for damages against
Sullenger, Whiteaker, Flores, and Black as against them in
their individual capacities.
2.
Tamney Claim
Under
the California Supreme Court’s decision in Tameny
v. Atlantic Richfield Co., “when an
employer’s discharge of an employee violates
fundamental principles of public policy, the discharged
employee may maintain a tort action and recover damages
traditionally available in such actions.” 27 Cal.3d
167, 170 (1980). Pursuant to California Government Code
subsection 815(a), however, “[a] public entity is not
liable for an injury, whether such injury arises out of an
act or omission of the public entity or a public employee or
any other person, ” unless otherwise provided by
statute. Cal. Gov’t Code § 815(a). Because a
common law claim for wrongful termination in violation of
public policy was judicially-created in Tameny and is not
codified in any statute, subsection 815(a) bars the claim
against public entities. Miklosy v. Regents of Univ. of
Cal., 44 Cal.4th 876, 900 (2008).
While
section 815 does not similarly limit the liability of
individual defendants, “a Tameny action for wrongful
discharge can only be asserted against an employer, ”
thus “[a]n individual who is not an employer cannot
commit the tort of wrongful discharge in violation of public
policy.” Id. In his opposition, plaintiff
nonetheless argues that defendants fail to “distinguish
between the individual defendants who are merely supervisory
or management employees of defendant County of Sutter and
those individual defendants who are elected officials and
policy-makers of County of Sutter.” (Pl.’s
Opp’n at 5:10-15 (Docket No. 10).) Plaintiff does not,
however, cite a single case suggesting that such a
distinction is relevant under a Tamney claim. In fact,
whether an official has policymaking authority is relevant in
other ...